United States Ninth Circuit

In a suit against the United States Bureau of Reclamation (Reclamation) and the United States Fish and Wildlife Service (FWS), alleging violations of the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) in the operation of the Glen Canyon Dam situated on the Colorado River, district court's grant of summary judgment in favor of the defendants is affirmed in part and dismissed in part where: 1) Reclamation's decision not to consult with FWS under the ESA does not violate the APA standards as annual operating plans (AOPs) are not the kind of affirmative "agency action" requiring formal consultation under the ESA and its implementing regulations because in issuing each AOP, Reclamation does not exercise discretion that could inure to the benefit of the humpback club; 2) an AOP is not a major federal action requiring compliance with NEPA procedures; and 3) the issue of whether the district court lacks jurisdiction under the APA to review the draft 2009 Recovery Goals is dismissed as moot.

Appellate Information

• Decided 08/13/2012
• Published 08/13/2012

Judges

• Gould

Court

• United States Ninth Circuit

Counsel